Gee v Deputy Commissioner Stewart
[2012] QCAT 33
•31 January 2012
| CITATION: | Gee v Deputy Commissioner Stewart [2012] QCAT 33 |
| PARTIES: | Nicole Robyn Gee (Applicant/Appellant) |
| v | |
| Deputy Commissioner Ian Stewart (Respondent) |
| APPLICATION NUMBER: | OCR259-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 30 November 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas AM QC, Presiding Member Michelle Howard, Member |
| DELIVERED ON: | 31 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent's decision of 23 September 2010 that Matter 1 was substantiated, and that it amounted to misconduct, is confirmed; 2. The respondent's decision of 23 September 2010 that Matter 2 was substantiated, and that it amounted to misconduct, is confirmed; 3. The respondent's decision of 23 September 2010 that Matter 3 was substantiated, and that it amounted to misconduct, is confirmed; 4. The respondent's decision of 23 September 2010 that Matter 4 was substantiated, and that it amounted to misconduct, is set aside, and in lieu thereof it is determined that Matter 4 is not substantiated; 5. The respondent's decision of 23 September 2010 that Matter 5 was substantiated, and that it amounted to misconduct, is confirmed; 6. The respondent's decision of 23 September 2010 that Matter 6 was substantiated, and that it amounted to misconduct, is confirmed; 7. The respondent's decision of 23 September 2010 that Matter 7 was substantiated, and that it amounted to misconduct is set aside, and in lieu thereof it is determined that Matter 7 is not substantiated; 8. The respondent's decision of 23 September 2010 that Matter 8 was substantiated, and that it amounted to misconduct, is confirmed; 9. The respondent's decision of 23 September 2010 at Matter 9 was substantiated, and that it amounted to misconduct, is confirmed; 10. The sanctions of dismissal imposed by the respondent in respect of Matters 1, 2, 3, 5, 6, 8 and 9 are confirmed. |
| CATCHWORDS: | POLICE DISCIPLINARY PROCEEDINGS –review of decision of Deputy Commissioner – merits review by tribunal POLICE DISCIPLINARY PROCEEDINGS – where misuse of donation to Police Citizens Youth Club – where police officer untruthful during disciplinary interview – where failure to account for monies collected – where dishonest application of funds belonging to Police Citizens Youth Club – where misleading application in application for advertised position – where exposed breasts to staff and other person – whether misconduct POLICE DISCIPLINARY PROCEEDINGS – sanction – where misconduct substantiated Crime and Misconduct Act 2001, ss 219B, 219G, 219H Aldrich v Ross (2001) 2 Qd R 235 |
APPEARANCES and REPRESENTATION (if any):
With the consent of the parties, this matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is a review of disciplinary proceedings brought against the applicant Nicole Robyn Gee. Nine charges were brought and the respondent found them all to be substantiated. On each matter he ordered that she be dismissed from the police force.
By the consent of the parties the present review has been conducted on the papers. There is an extensive record which includes nine volumes containing 3,124 pages of statements and evidence gathered during the original investigations, and two further volumes containing 765 pages of transcripts and associated documents concerning the disciplinary proceeding conducted by Deputy Commissioner Stewart.
There are also extensive written submissions that have been provided by the applicant, including a 66 page submission dated 7 April 2011, a further 55 page submission provided in December 2011, and a final 21 page submission received on 9 January 2012.The respondent has provided a 7 page submission of 23 May 2011, and a 22 page submission received by the Tribunal on 24 December 2011.
The decision-maker’s reasons are 514 pages long. They consist mainly of lengthy quotations from interviews and references to various submissions followed by observations of the decision maker. Specific findings of fact are not easy to locate.
It is of course our task to make up our own minds on the evidence and to conduct a fresh hearing on the merits in the manner recognised in Aldrich v Ross (2001) 2 Qd R 235; QCAT Act, section 20(2). The primary source of our jurisdiction in his matter is sections 219G, 219H and 219B(a)(1) of the Crime and Misconduct Act 2001.
The charges
Nine charges were brought covering a wide range of alleged misconduct.
Dealing with them in the same order as the original decision maker the charges are as follows:
Matter One
That between the 28th day of February 2008 and the 24th day of January 2009 at Mt Isa or elsewhere your conduct shows unfitness to be or continue as an officer in that you:
(a)dishonestly applied to your own use, or to the use of another person, a ‘Trailblaza’ portable camping fridge donated to the Mount Isa Police Citizens Youth Club for that club’s assistance
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
…
Matter Two
That on the 16th day of December 2008 at Brisbane your conduct was improper in that you:
(a)were untruthful to Inspector Raymond Rohweder during your disciplinary interview
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
…
Matter Three
That on the 23rd day of April 2009 at Rockhampton your conduct was improper in that you:
(a)were untruthful to Inspector Raymond Rohweder and Inspector David Hickey during your disciplinary interview
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
…
Matter Four
That between the 1st day of July 2007 and the 17th day of April 2008 at Mt Isa or elsewhere your conduct shows unfitness to be or continue as an officer in that you:
(a)dishonestly applied to your own use, or to the use of other persons, a number of wrist bands, the property of the Queensland Police Union of Employees
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
…
Matter Five
That between the 14th day of April 2008 and the 10th day of June 2008 at Mt Isa or elsewhere your conduct shows unfitness to be or continue as an officer in that you:
(a)dishonestly applied to your own use, or to the use of other persons, one-thousand and five dollars ($1,005.00), the property of Mt Isa Police Citizens Youth Club
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
…
Matter Six
That between the 10th day of December 2007 and the 20th day of December 2007 at Mt Isa or elsewhere your conduct shows unfitness to be or continue as an officer in that you:
(a)dishonestly applied to your own use, or the use of other persons, nine-hundred and ninety seven dollars and eighty cents ($997.80) the property of the Mt Isa Police Citizens Youth Club
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
…
Matter Seven
That between the 10th day of December 2007 and the 15th day of December 2007 at Doomadgee or elsewhere your conduct was improper in that you:
(a)transported twenty cartons of alcohol into a community subject to an Alcohol Management Plan in a manner specifically designed to circumvent alcohol restrictions
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
…
Matter Eight
That between the 3rd day of April 2008 and the 22nd day of April 2008 at Mt Isa or elsewhere your conduct was improper in that you:
(a)knowingly provided false and misleading information in your application for an advertised position
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
…
Matter Nine
That between the 31st day of March 2007 and the 1st day of March 2008 at Mt Isa your conduct was unbecoming an officer in that you:
(a)within the workplace sexually harassed Welita Stone, an employee under your direct supervision, or formerly under your direct supervision
[Section 1.4 of the Police Service Administration Act 1990 and section 9(1)(f) of the Police Service (Discipline) Regulations 1990]
…
Findings of fact
Having read Ms Gee’s seven interviews, her submissions to the decision maker and her further submissions to this Tribunal, we feel obliged to mention that we have come to the view that the applicant is prone to making contradictory statements, and that she has presented many inconsistent versions of events. The inconsistencies are too great to be reconciled as the product of misunderstanding, ill health or other excuse. We consider that the applicant has shown a willingness to tailor her evidence to suit the particular occasion, and that her evidence and assertions should not be accepted except in instances where the relevant fact or event is supported by other credible evidence. Our reasons for this view will emerge during our discussion of the facts.
Matter one – misuse of trailblaza fridge
During 2007 the applicant became heavily involved in the Mt Isa Police Citizens Youth Club (PCYC). She was at material times its Branch Manager.
During April 2008, during a mining expo at Mt Isa, a Trailblaza portable camping fridge was donated to the PCYC by Margaret Albeiz, Chief Executive Officer of Norcoast Refrigeration Company Pty Ltd. It was donated for the benefit of the PCYC. Ms Albeiz made this clear to the applicant who was at all material times aware that the beneficiary of the gift was the club.
The essence of the charge is that the applicant dishonestly applied the fridge to her own use, or to the use of her colleague, Senior Sergeant Kennedy, with whom she was at material times in a relationship.
Following the donation the fridge was placed in the PCYC crewman vehicle. According to the applicant “it stayed there for a few days and went home with me each night to Kennedy’s residence where I resided”.[1] According to the applicant she needed the car to transport something, so she “moved the fridge out under the house”.
[1] Applicant’s submissions December 2011 page 2.
The defences that are relied on include non-use of the fridge, absence of proof of its use, and use of the fridge pursuant to entitlement to do so. One basis of such an entitlement is said to be that there was a special arrangement with the donor (in association with Sergeant Kennedy) for Kennedy to have possession of the fridge with a view to assisting the donor in future promotional activities; and another alternative is the applicant’s alleged entitlement to use the fridge and to give others permission to use the fridge because of her position as Branch Manager of the PCYC.
During May 2008 Kennedy was transferred from Mt Isa to Rockhampton. Arrangements were made for the packing and carrying of his possessions from Mt Isa to Rockhampton both by carriers and by him driving his own vehicle and trailer with residual items and other property including his dogs.
The applicant’s first version, given on 16 December 2008, was that after she left the fridge at Kennedy’s house the packers had by mistake packed it and moved it to Rockhampton along with Kennedy’s other possessions “and we didn’t even know”.[2] “When we realized that it was there and I couldn’t take it back because I flew back so I was going to take it back when I drove back after my holidays ...” At that stage she said “it’s not mine it hasn’t been used, it’s sitting downstairs ...”
[2] Record Vol 4 pp 359-361.
The alleged error of the packers, she claimed, was a surprise to both of them. “We didn’t even know until they delivered it .. at Rockhampton four weeks later”. According to the applicant “he rang me and said oh do you know that fridge and I went no it should be with all my stuff and um he said no I’ve got it and I went oh my god and I said oh no dramas well when I come down in June .. I’ll bring it back.”[3]
[3] Record Vol 4 p 363.
Subsequent statements contain considerable departures from most of those statements.
In a later version she stated that the reason for delivering the fridge to Kennedy’s residence in Mt Isa was “we were going to test it for her” (i.e. for Ms Albeiz), in other words that there was a special arrangement with Ms Albeiz that the applicant and Kennedy would do various things in relation to the fridge to assist future promotional activities of Ms Albeiz. For this purpose, according to the applicant “it needs to be hard wired .. so um I asked Brian if he would do that for me.”[4]
[4] Record Vol 4 p 633.
On this version she had forgotten that he had it. She had been with him during the trip from Mt Isa to Rockhampton but did not know it was among the possessions they were carrying. Towards the end of May, when she was back in Mt Isa again, he told her by phone that he had the fridge. She asked him whether he had a chance to test it and he said no. She admitted that she had given him permission to take the fridge to Rockhampton.[5]
[5] Record Vol 4 p 634.
The principal defence seems to be that whatever possession the applicant and Kennedy had of the fridge between April 2008 (when it was donated) and January 2009 (when it was returned from Rockhampton to Mt Isa), was for the purpose of testing it pursuant to a special arrangement in that behalf made with the donor Ms Albeiz. The version of Kennedy was that Ms Albeiz often used local community groups in presenting her products at regional events and, knowing that police were often associated with community groups, he suggested that due to his impending transfer to Rockhampton he and Sergeant Gee might be able to assist her with future events. According to him Ms Albeiz agreed and told him to use the Trailblaza and get to know its workings and capabilities so that he and Gee could provide such assistance.
The applicant specifically submitted (in page 8 of her final written submissions):
“I allowed Kennedy to take the fridge to Rockhampton and use it to become familiar with it for the dual purposes of assisting in the preparation of instructions on how to use it safely, and also to assist with further expos in order to obtain additional fridges for other PCYC’s.”
The applicant’s submissions to the decision-maker included the following:
“She [Ms Albeiz] enquired whether myself and Senior Sergeant Kennedy would be interested in doing some of these expos in future in our own time, and if so she would be willing to donate us a fridge that would be ours to keep or give to another PCYC. We made plans to keep in contact and help where we could. It was in this context that she suggested that we both get to know the fridge inside out, so we could promote the product at future events.”
Ms Albeiz however denied any such conversations or instructions, she stated that she made it clear to all concerned that it was a simple donation for the benefit of the PCYC and that there were no special arrangements with the applicant or Sergeant Kennedy concerning testing or other special activities involving the fridge.[6]
[6] Record Vol 5 pp 996-998.
We do not find the evidence of the applicant and Sergeant Kennedy to be credible. The different versions of Ms Albeiz on the one hand and the applicant and Sergeant Kennedy on the other cannot be explained by some misunderstanding on the part of the persons concerned. The versions are diametrically opposed. The applicant’s version seems to be a manufactured excuse for unjustified possession of PCYC property, and we reject it.
There is ample evidence that Kennedy was in possession of the fridge with the applicant’s knowledge and consent from the moment that the applicant placed it under his house at Mt Isa. He used it both before leaving Mt Isa and again during the following seven months at his residence in Rockhampton. Kennedy and the applicant were domestic partners during that period although there was a degree of disruption related to ill health of the applicant and a delay in her securing a transfer to Rockhampton. However she was on various forms of leave for most of this period and spent time with Kennedy in Rockhampton.
It is unnecessary to determine whether the fridge was used during the journey from Mt Isa to Rockhampton, as the evidence clearly shows its use at both of these centres, before and after the trip. It is impossible to know the precise degree or extent of usage of the fridge, as evidence of that nature is only within the knowledge of the applicant and Sergeant Kennedy. However, the evidence obtained from Kennedy proves usage for general domestic purposes. Inter alia we accept the evidence of the removalists Sutton and Thompson which confirms this.
During the period before they returned the fridge to the PCYC, Kennedy and the applicant treated it as their own property. No-one at the PCYC was told that they had it. PCYC records apparently do not exist to document the gift to the PCYC. Further, despite Gee’s contrary assertions, a loans register containing an entry that the item was in possession of Kennedy and Gee was not able to be found despite extensive searching. Neither Gee, nor Kennedy did anything with respect to the fridge that supports their claims that it was to be promoted for the benefit of Ms Albiez. They did nothing to adapt it for PCYC activities. While it was in Rockhampton Kennedy says that he read the thermostat to see if it would cut out at the stated temperature, but this is simply consistent with the action of an interested user. His own statement about this was “I mean, it wasn't so much I was testing and keeping records.. but I was using the product to see.. how it goes."[7] No Standing Operating Procedures (SOPs) which Gee alleges Kennedy was to prepare as part of her explanation for their possession of the fridge were ever prepared or even commenced despite possession of the fridge for over eight months.
[7] Record Vol 7 p 1540.
Another defence raised by the applicant is that the applicant, as Branch Manager of the PCYC, had lawful authority to lend its equipment to whomsoever she pleased. Reference was made to section 1.11.3 of the QPCYWA Procedures Manual which states:
“The management committee policy on loan or higher of association equipment will be a committee decision but at the discretion of the Branch Manager taking into consideration requirements of the branch activities.”
The applicant admits authorising Kennedy to possess and use it, and contends that there were two valid purposes justifying her doing so. Firstly she says that she asked him to prepare instructions on how to use it safely, presumably for the future benefit of PCYC members; and secondly she says that she authorised to him to have it so that he could assist with further expos in line with the alleged arrangement that had been made with Ms Albeiz.
We consider those explanations to be spurious.
In our opinion the Management Committee Policy Rule cited above does not afford any justification for the applicant’s actions. At material times the fridge was simply appropriated to the domestic benefit of Kennedy and the applicant despite their knowledge that it belonged to the Mt Isa PCYC. The above rule does not authorise or justify any actions on her part contrary to the purposes of the gift of which both she and Kennedy were well aware.
She knew it was donated for the sole benefit of the PCYC. Whether their use of it, and Kennedy’s use as authorised by her, is characterised as temporary misappropriation, illegal use, trespass to goods or plain commandeering for personal use it was plainly improper conduct for any member of the Police Force.
In our opinion the applicant’s conduct and dealings with the fridge fails to meet the standard of conduct that the community reasonably expects of a Police Officer. It in our opinion amounts to “misconduct” within the definition of that term in section 1.4 of the Police Service Administration Act 1990.
Matter two – untruthful during disciplinary interview regarding Trailblaza fridge
This relates to the applicant’s interview of 16 December 2008 in which (apart from an introductory telephone interview) the applicant gave her initial version to the investigator on this subject.
This version cannot survive analysis. It is a mixture of prevarication and misinformation.
It included the following statements:
*.. when the packers came they packed it up
*.. like the packers went to pick it up and I said no, don't, don't take that..
*.. It was by mistake, and it's very heavy and.. yeah, like by mistake, the packers when they moved staff packed it and moved it to Rocky.
*.. They just put it all in the truck and um we didn't even know.
*.. I assumed it was downstairs under the house
*.. It hasn't been used.
*.. It was moved um June, no..May.
*.. Yeah they just, yeah, and we won't even, we didn't even know until they delivered it sort of like at Rockhampton four weeks later.
*.. I didn't, we didn't use the fridge.. we didn't have stuff in the fridge..
*.. I don't think we ever, ever used that fridge.
*.. An affirmative response to Is it a case you just decided to use the fridge .. because it was convenient to use the fridge to be able to go and travel down and then you would go and get it back?
*..Yeah. Well we, yeah we used - when I realised yeah we did, we used it..
The applicant has since attempted to explain her statements on the basis that she was confused or in ill health at the time of interview, but we do not think that this can properly explain the contradictions and inconsistencies. In our view her surprise at being told that the packers had mistakenly taken the fridge was feigned. In fact the packers had not taken the fridge at all, and Kennedy had never told her that they did.
The applicant’s denial of use (“it hasn’t been used ..”) conflicts with later admissions of use. The version given on 16 December 2008 was in substance untrue and was designed to mislead the interviewer.
We find matter two established.
Matter three – untruthful re alleged phone call during interview of 23 April 2009
The interview of 23 April 2009 included questions concerning the applicant’s conduct while performing duties at the Mount Isa PCYC. Before the interview commenced she had mentioned her expectation that she would be stood down that day. At the commencement of the interview she was directed to answer questions truthfully, completely and properly.
Towards the end of the interview, she was questioned about her pre-interview statement and replied – I got a phone call. The phone call was, she said, from a person she did not know, and it was last Friday. Following further questioning she was asked Did you receive the phone call Nicole? To which she replied No, but I did get told. She was then asked So why did you say that you received a phone call? To which she replied Oh.. because I.. can't recall who told me and… well, no, someone did tell me but they didn't ring me… Well, I can't recall who it is and that's just what I got told.
The applicant was then asked So everything you've just told me was a lie, then… in relation to ..phone calls from Brisbane.. anonymous? She replied no, the phone, the phone call was, but everything else I did get told last Friday. She added Well the phone call bit, yeah, but I didn't get told by a phone call.
The applicant has also, during a subsequent interview of 1 October 2009, admitted that she was untruthful “in relation to the phone call I received.”[8]
[8] Record Vol 4 p 675.
It is unnecessary to repeat the particulars. On their face they demonstrate that she claimed to have received a phone call “last Friday”, and then conceded that she had received no such call.
It seems to have been a lie for very little purpose, perhaps to make an impression upon the interviewer.
The starting point on this matter is that she told a lie and very soon afterwards admitted that it was a lie.
The applicant however disputes that this conduct was improper.
Firstly she contends that the untruthfulness occurred in circumstances where she was not subject to the directions to answer questions truthfully. She concedes that at the outset of the interview she was directed to answer the questions truthfully, completely and promptly. In point of fact the interviewer reminded her of the Commissioner’s direction under section 4.9 of the Police Service Administration Act 1990 that requires all members of the police service “to truthfully, completely and promptly answer all questions directed to them by a member responsible for conducting an enquiry for investigation ..”[9]
[9] Record Volume 4 p 540.
The applicant’s submission is that this only obliged her to answer truthfully any questions that related to “the official interview”, that is to say the subject matter of the investigation. The relevant question, she says, was asked after the relevant investigation had finished.
It is true that the interview was virtually over, and the interviewers had asked the final set of questions that are standard in these interviews. However the interview had not been formally terminated. At that late point Inspector Hickey referred to something that the applicant had said before the interview, to the effect that she was expecting to be stood down that day. In response to further questioning she said that she had heard it from a male person in Brisbane by telephone the previous Friday. Following further questioning and a reminder from the interviewers that they would be able to confirm whether a phone call had been made or not from her phone records, she admitted that she had not received any such phone call.
In her December submissions the applicant submits “I .. knew that this questioning wasn’t part of the official investigation for which I had been directed to answer questions. Faced with this situation, I think the lied and retracted by statement that I had received a phone call so they would not question me further in circumstances that I considered to be inappropriate.” It was, she submits, a very poor decision made on the spur of the moment, but contends that it did not amount to improper conduct. It was, in her words, “for a noble cause to stop inappropriate questioning”.
The obligation of a police officer to answer truthfully during interviews has been recently discussed in Crime and Misconduct Commission v McLoughlin and Wilson OCR033-11 (2011) QCAT paragraphs 15-28.
The relevant Commissioner’s direction is contained in the Human Resource Management Manual (HRMM) at paragraph 18.2.4.4.9. It is not limited to questions directly relevant to the matter being investigated. The direction covers all questions directed to an interviewee by a member responsible for conducting an investigation.
Further, the following statement made in McLoughlin’s case above is relevant:
“We think that the telling of lies by a policeman in the course of any work related police investigation would be capable of constituting misconduct under the above definition, quite apart from whether any Commissioner’s Directions had been made in this behalf, or from the question whether a specific warning was given in accordance with such directions.”
It is true that the subject matter perused by Inspector Hickey was peripheral, but it hardly justified a lie in response. One can understand some resentment by the applicant at being questioned on this matter, but it was something that she had herself raised before the interview started.
In summary, while we do not regard this particular transgression by the applicant as at the more serious end of lies during interviews, it was, we think, quite unjustified and that it satisfies the definition of “misconduct” in the Police Service Administration Act 1990. In particular it was improper, and does not meet the standard of conduct the community reasonably expects of a police officer.
Matters four and five – failing to account for wristbands, proceeds of sale and donations
There is some overlapping in these charges and it is convenient that they be discussed together.
It is common ground that during 2007 the applicant received 200 wristbands from the Queensland Police Union of Employees (QPUE). The object of the exercise was to raise money for the legal defence of Senior Sergeant Hurley who was facing well-publicised criminal charges concerning a death on Palm Island.
It is alleged that the applicant misappropriated the monies received from the sale of these bands, and failed to return the unsold bands to the QPUE.
The applicant admits that she sold 162 of the bands at $5 each, and that she also collected some donations for the fund, to a total value of $1,005.00. She was not able to produce any record of donors or receipts, but claims that she kept all such records in a diary, and that the diary has “gone missing” from her office when, in the course of the investigation of her activities, Janelle Poole visited her office and took possession of computers in May 2008.
In the normal course the person at Mt Isa responsible for distributing the wristbands for the QPUE was another police officer, Ms Losdahl. However the applicant took it upon herself to email the police union representative responsible for this project, Sergeant Gerrard, volunteering to sell the wristbands, stating that Ms Losdahl had a high workload with plain clothes duties. Subsequently the applicant told Losdahl that she had spoken to Gerrard, and that he had OK’d it, upon which Losdahl agreed that she could go ahead.
Sales proceeded successfully. But the applicant did not remit any proceeds to the QPUE. Eventually Gerrard had several conversations with her in relation to non payment, and warned her that "another course of action" might follow if the money was not paid soon.[10]
[10] Record Vol 6 p 1320.
Eventually on 15 April 2008 the applicant, who was Branch Manager of the Mt Isa QPYC, prepared a PCYC cheque for $1,005.00 and sent it to the police union. She thereby used the Club’s cheque to discharge a personal obligation. She has never reimbursed the PCYC.
The sale of the wristbands was never an activity authorised by or on behalf of the PCYC. The applicant has no stage paid or banked the money to the account of the PCYC.
The applicant’s explanation is that she found it inconvenient to keep the money in her police office and that she chose instead to treat it as “money going into the youth club as part of donations.”[11]
[11] Record Vol 4 pp 319-325.
Her initial version was that she put the money from the sale of wristbands into the safe at the PCYC and then banked the money and later drew a cheque. Later she admitted that she had not banked the money, and alleged that another PCYC officer, Welita Sloane, had banked the money. She subsequently alleged that Welita Sloane did not bank the money and must have stolen it. Welita Sloane denies this. Her evidence is that she neither saw any such money nor received any instructions to bank it.
In her written submissions of December 2011 the applicant strongly submitted that all these versions are consistent. In our view she changed her ground at different stages, and in any event we do not find her explanations acceptable.
She claims that she only wrote a PCYC cheque because she erroneously assumed that the money which she claims to have left in a safe in the PCYC whilst she was at Doomadgee, would have been banked by Ms Sloan and recorded on the till as a donation. Her unsupported claims of leaving money in a safe, of assuming that it would be banked by someone else, of believing (without checking) that the PCYC had received the funds, of assuming that they would have been banked, and of drawing a cheque on the Club in such circumstances, are not consistent with the actions of an experienced policewoman, and we find them unacceptable.
In our view the evidence amply demonstrates the misuse of monies which she held on trust. Eventually, in order to meet growing pressure from the Police Union for payment, she defrauded the PCYC by causing it to pay the debt without providing for any reimbursement.
This amply substantiates matter number five (“dishonestly applied to your own use, or to the use of other persons, $1,005, the property of Mt Isa Police Citizens Youth Club”). Indeed, it may be noted that the evidence shows two separate acts of misconduct in the course of her financial activity –
(a) keeping for herself the money collected by her for her principal, the Queensland Police Union of Employees; and
(b) defrauding the PCYC by causing it to pay money to discharge her personal debt to a third party (the QPUE).
She has not been specifically charged with the misconduct identified in (a) above, although the particulars of matter four contain the allegation that the “..money raised as a result of the sale of those wristbands.. remains unaccounted for”. Strictly speaking, however, this is a separate allegation that goes beyond the scope of matter four, which charges misapplication of wristbands, not of money. In our view matter four should be read as confined to this application of the bands, and matter five to misapplication in relation to the dishonest use and application of the club’s cheque for $1,005. It would be unsafe to find matter four substantiated on the basis of misapplication of money.
The essential allegation in matter four is that she dishonestly applied the wristbands to her own use, or the use of other persons.
According to the applicant there are 38 such bands which have not been returned. The Police Union has been paid in full (by means of the PCYC cheque) for the 162 bands that were sold. She claims that she has always been willing to return the remaining bands and has not dealt with them in any way that could be considered improper. She claims to have telephoned someone at the Union to see if they wanted them returned, and was advised that they were no longer a saleable item and that they did not want them back. This is mere assertion on her part, but it is credible, and there is no evidence to the contrary.
In short, the applicant has retained unsold wristbands that the union apparently does not want returned. They are no longer of any value, and the occasion for their use has passed. In the absence of any complaint from the Union in relation to the bands, we do not think that impropriety is shown through the non return of the bands, and we find that matter number four is not substantiated.
However, as indicated above, matter number five is clearly substantiated.
Matter six – dishonest application of $997.80 (property of Mt Isa PCYC)
During December 2007 the applicant organised a function called the Doomadgee Christmas Extravaganza at Doomadgee. Its purpose was to provide a week-end of activities for young people in that area. It is established that she caused PCYC funds of $997.80 to be expended on liquor which was taken to the recreation club area in Doomadgee. The question is whether her application of these funds was dishonest.
The particulars also raise the question of her leaving behind of a quantity of alcohol at Doomadgee.
With respect to the leftover alcohol the applicant correctly points out that it was left at the recreation club at Doomadgee, not at the police station as stated in the particular. The applicant has not been disadvantaged by this error, and if it were necessary we would grant leave to amend the particular in that respect.
In the latter part of 2007 the applicant was the Branch Manager of the Mt Isa PCYC. She conceived the idea of a Christmas Extravaganza for the young people at Doomadgee and persuaded the PCYC to sponsor such an event. $12,000 was raised for it.
Such an event was successfully conducted at Doomadgee during December of 2007. The present complaint concerns the applicant’s use of funds for the purchase of 20 cartons of beer for the volunteers who assisted with the event, and the fact that the liquor which was not used (which seems to have been a substantial quantity) was not retained for the benefit of the PCYC, or the donors, and was left for the use of those in the recreation club at Doomadgee, largely the local police.
A good deal of criticism was expressed by senior officers during the course of the investigation into the conduct of the applicant in bringing a substantial quantity of beer into the Doomadgee restricted area, but in our view some of that criticism was misplaced. Our view of the extravaganza function and the carriage of liquor into the recreation club for the use of those who were promoting the event has been discussed in reasons for judgment in Kennedy v Stewart OCR036-11 2011 QCAT. In our view the applicant is not to be criticised for the mere act of arranging for liquor to be available to those who assisted with the event, or for arranging for it to be ferried into the settlement. Indeed the function overall seems to have been successfully run and there were no complaints from the community on the liquor issue.
The substance of the present charge concerns her dealings with the PCYC including her use of Club money to purchase the relevant liquor, and the arrangements that she subsequently made to abandon what was left over so far as the club was concerned. The ultimate question is whether these actions were dishonest.
The first question is whether the applicant had sufficient authority from the club to expend $997.80 on alcohol.
She became Branch Manager of the Mt Isa PCYC on 17 September 2007. There is however no reference to any payments of this kind being authorised in the minutes. Under the association rules (appendix 1)[12] the Branch Manager has sole purchasing authority up to $500, and purchasing authority up to $1,500 with the approval of the Chairman.
[12] Record Vol 3 pp 88-92.
She did not obtain the approval of the Chairman to the relevant purchase of the alcohol. Indeed the Chairman (Mr Zvaigzne) said he had not approved the expenditure and that he would not have done so had he been asked.[13] The Treasurer, Father Lowcock, expressed similar views.
[13] Record Vol 11 pp 3044-3057.
The applicant claims that she acted under the mistaken belief that she had authority to make purchases up to $1,000.
There is no acceptable evidence that the applicant ever disclosed her intentions concerning the purchase and use of the liquor though there is no doubt that she had the authority of the PCYC to conduct the Extravaganza and, subject to the rules, to incur expenditure for it. The evidence as a whole suggests a lack of consultation and approval from the PCYC of the relevant purchase of liquor. It also shows an extraordinarily generous estimate of the liquor necessary to satisfy the needs of the volunteer helpers.
The applicant has alleged in submissions that during a PCYC meeting of 20 November 2007 the purchase of alcohol was discussed. However, Kennedy's evidence makes no mention of any such discussion or approval at that meeting, which he attended as a committee member. Similarly, the evidence of Robyn Caslick and Kirra White[14] who attended the meeting, make no reference to any discussion about the purchase of alcohol.
[14] Record Vol 5 pp 952-956; and Vol 6 pp 1035-1060.
The evidence supports a finding, and we make it, that the PCYC Committee was never advised of the fact that the applicant would use PCYC funds for the purchase of alcohol: and no such approval was given at the 20 November 2007 meeting.
It is true that her actions were not done covertly and that subsequent to the incurring of the expenditure a financial statement was passed without comment at a committee meeting of 12 February 2008.[15] However there is no evidence of disclosure of the relevant facts concerning the account or of any informed ratification. Appropriate authorisation was never sought. The evidence of “openness” about the purchase does not go much further than the fact that the witnesses White and Caslick (who were not persons in authority) were at some stage made aware of the fact that liquor was being purchased and they acquiesced on the assumption that it was legitimate, though they had no idea why so much was purchased.[16]
[15] Record Vol 10 p 2639.
[16] Record Vol 5 pp 952-956; and Vol 6 1035-1060.
The applicant’s actions in deciding to purchase a substantial quantity of alcohol for the benefit of volunteers who would be assisting her with the Extravaganza and her subsequent failure to account to the PCYC for the substantial quantity that was not consumed during the event, reveal at the very least a cavalier and reckless approach to the running of the affairs of the Club. The amount of liquor that was left over is not precisely known, but one witness expressed the view that only four or five out of the 20 cartons had been consumed during the event. Plainly it was the property of the club and the applicant was its custodian. It is a matter of concern that she did not arrange to bring it back to club premises, and instead left it in the possession of the recreation club in circumstances where the likely beneficiary would be the local police, the Chief Officer among whom was her partner Kennedy.
The witness Hollier[17] recalled a specific statement by the applicant that she was leaving the alcohol at Doomadgee “on purpose”. In her view only four or five cartons were consumed during the event, “The rest of it was left there, we never brought any back.”[18]
[17] Record Vol 6 p 1380.
[18] Record Vol 6 p 1409.
On the evidence of Hollier, which we find acceptable, it was a deliberate decision of the applicant to leave the liquor behind for the benefit of the police officers at Doomadgee.
In an effort to excuse her disposition of the liquor, the applicant states that some presents left over from the Extravaganza were donated to the hospital, and some other items (including gas bottles) were donated to other charities. However in the absence of her raising the issue with persons in authority in the club her unilateral treatment of the surplus liquor was an unauthorised misappropriation or abandonment of the property of someone else, of which she was the custodian.
This brings us to the most difficult point in relation to this charge, namely whether she applied the money dishonestly, and whether her actions in purchasing and providing the liquor, and leaving it behind afterwards, as indicated in the particulars, was dishonest. The word "dishonestly" in the charge is used with its ordinary meaning, and not in any special sense or context. As such, it is an issue to be decided by the standards of ordinary decent people (Cf R v Allard [1988] 2 Qd R 269, 276; Peters v R [1998] 192 CLR 493 para [18] per Toohey and Gaudron JJ, with whom Gummow J agreed (cf paras [86] and [93])).
Her failure to disclose her intentions to the Chairman or Treasurer of the PCYC concerning the use of alcohol seems to have been quite deliberate. One would expect a potentially controversial issue like this to have been brought out into the open at the first available opportunity so that the matter could be discussed by those in authority in the club. Nothing like this occurred. The event was totally orchestrated by the applicant. She did not obtain proper authority and it may be inferred that she was aware that if she had disclosed her intentions some difficulties would be likely to have been placed in her way. She was prepared to use the assets of the club to do what she chose.
It is true that she did not derive any personal material benefit from the running of this activity. It was however an extraordinarily large quantity to purchase considering the likely consumption of the volunteers and it involved a dishonest misuse of the club’s funds and assets, especially when it is must have been known that the ultimate beneficiaries would be the local police.
We take into account the applicant’s failure to make clear disclosure of her intentions as to the use of the club funds; the fact that under the rules she was not authorised to make the relevant expenditure; the fact that she did so; the fact that she purchased what can only be regarded as an excessive quantity of liquor and arranged for it to be taken to Doomadgee; her decision to leave the bulk of it behind at Doomadgee for the benefit of the local police; and her ultimate failure to account to the PCYC for the unconsumed liquor. We are of the view that according to ordinary standards of honesty in the community her actions the subject of this charge were dishonest.
We accordingly uphold the finding that charge six has been substantiated.
Matter seven – transportation of alcohol into Doomadgee
In paragraph [81] above we have stated why we consider that there was nothing unlawful in the applicant’s actions in arranging for the transport of the liquor into the Doomadgee community, and nothing improper in her desire to provide liquor for the volunteers who assisted in the project. Her fault lay in the manner in which she financed it and ultimately dealt with the liquor.
We have recently dealt with the question whether the ferrying in of this particular batch of liquor was itself an act of impropriety, in the matter of Kennedy v Stewart [2011] QCAT 667. We take a similar view here and rely upon the reasoning set out therein.
In our view it was neither unlawful nor improper for the applicant to be involved in the importation of the liquor into Doomadgee for the stated purpose of consumption by the volunteers during the Christmas Extravaganza.
This matter is not substantiated.
Matter eight – misleading information in application
The charge is that the applicant knowingly provided false and misleading information in an application for an advertised position.
In April 2008 the applicant made a written application for the position of Sergeant, Branch Manager, Palm Island Police Citizens Youth Club.[19]
[19] Record Vol 8 pp 1804-1805.
She claimed in supporting documents as follows:
§Passed financial audit without errors
§Completed grant applications for upgrade of PCYC OSHC bus and OSHC facility. Succinctly outlined organisation overview, project overview, community benefits and acknowledgement details upon receipt. Obtained letters of support from local political figures, service areas and stakeholders
§Successfully applied for a major grant ($40,000) to upgrade PCYC gymnasium.
The applicant does not contest that these allegations were erroneous and misleading; her defence is that they were not knowingly false and misleading.
Material in her possession at relevant times shows that she had been involved in previous financial problems at her PCYC branch, and that it was untrue to say that she had “passed financial audit without errors”20. Among other evidence is Fiedler’s report of 8 February 2008 “branch internal audit”,[20] which specifically refers to errors indeed there are numerous comments with respect to financial errors.
20 Record Vol 11 pp 2807-2817.
[20] Record Vol 11 pp 2807-2813.
The evidence of Andrea Cassidy[21] contradicts the statements that are cited in the second bullet point above.
[21] Record Vol 6 pp 1061-1094.
The third allegation “successfully applied for a major grant $40,000 to upgrade PCYC gymnasium” is simply untrue. The reality was that the relevant grant applications were completed by the previous Branch Manager, and the applicant did not submit any grant applications of that kind. Her involvement was merely to confirm the quotations and organise the purchase of the outlined equipment.
In our view the statements that were made in the job application were plainly and knowingly misleading and false.
Matter eight is substantiated.
Matter nine – sexual harassment charge
The particulars in relation to this charge are:
§You exposed your breasts in front of Welita Sloane and Lando Sloane at the Mt Isa Police Citizens Youth Club;
§You allowed Lando Sloane to touch your breasts in the presence of Welita Sloane; and
§Your actions caused Welita Sloane embarrassment, and therefore amounts to sexual harassment.
The applicant’s submissions are:
§I didn’t engage in the conduct specified
§Even if I did, the conduct doesn’t amount to sexual harassment
In April 2007 the applicant arranged and underwent a breast augmentation procedure.
Some weeks later, possibly in June, there was an incident which eventually resulted in a complaint concerning the present matter.
There was a function at the PCYC premises the persons involved in the incident were the applicant, Welita Sloane (the Branch Administration Officer at the PCYC), her husband John Lando Sloane, and the applicant.
It is now common ground that there was an incident during which she exposed her breasts to Lando Sloane, and asked him if he wanted to feel the implant. There are differences in the versions of what actually occurred. Lando Sloane’s version is that she exposed her breasts to him and then covered them up and that he felt them through her clothing. Welita Sloane confirms that the applicant exposed her breasts to Lando Sloane and later asked him if he wanted to feel them. In giving her account she was not expressly asked whether there was touching of her breasts, but she described the main incident in these terms:
“She lifted her .. shirt for him to see and she said feel them, feel them. She did put her shirt down and told him to feel and that’s how I pretty much recall it ..”[22]
[22] Record Vol 5 pp 817-818.
The applicant’s version is that she exposed the scar underneath her breast to Stone, and may have subsequently asked Lando Sloane in the presence of his wife if he wanted to feel the implant, but she says there was no actual touching.
The applicant’s version needs to be treated with some reserve. In earlier submissions dated 29 July 2009 she claimed that the allegations of exposure and touching “are nothing more than vexatious lies”, and that Welita Sloane’s complaint was “a fabrication to get me into trouble”. She described the allegations as “baseless”.
Furthermore, when giving her original version to the investigators on 16 December 2008, she described the incident as involving only herself and Welita Sloane, and “maybe we went into the toilet and she just had a look where the cuts were.”[23]
[23] Record Vol 4 p 436.
Later in the interview she recalled that there was a night when Lando Sloane was present and that there had been an incident in which he was involved, and admitted telling him “you can have a feel”.
The version given by Lando Sloane is credible and acceptable. When asked by police if he remembered the incident he replied “yes I sure do.”[24] His version is entirely consistent with that given by his former wife, Welita Sloane, and it contains slightly more detail.
[24] Record Vol 5 p 723.
At that time, the relationship between Mr and Mrs Sloane had broken down but contact was still maintained respecting the children, and obviously there was a degree of residual contact between them. Referring to the time of the incident, he supposed that his relationship with Welita Sloane “was already on a very, very steep down, down, down hill.”[25]
[25] Record Vol 5 p 727.
The applicant’s final point is that the conduct in question does not prove that she “sexually harassed Welita Sloane” having regard to the definition of “sexual harassment” in section 119 of the Anti Discrimination Act 1991. Under that section, sexual harassment is established in circumstances including when a person “engages in any unwelcome conduct of a sexual nature in relation to the other person .. in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.”
The present charge is however a disciplinary matter and is not a proceeding under the Anti Discrimination Act 1991. Our view is that the words in the charge “sexually harassed” should be given their ordinary meaning, and that they are not used as a term of art or subject to any particular statutory definition. The question is whether in the ordinary use of that term a reasonable person would be of the view that she sexually harassed Welita Stone.
Welita Stone confirmed that there had been an earlier incident when the applicant had exposed her breasts to others who were present, presumably other females. Her evidence includes:
“Well she exposed her breasts to whoever wanted to see ‘em before that and .. she asked my husband if he wanted to see them. And he looked at me as if to ask, I said to him don’t ask me because I was gobsmacked, I didn’t know what to say.”[26] She continues “and she said no look, look, look at them and she lifted her .. shirt for him to see and she said feel them feel them. She did put her shirt down and told him to feel and that’s how I pretty much recall it”.[27]
[26] Record Vol 5 p 817.
[27] Record Vol 5 p 817.
The breast and nipples were exposed; it was not merely a demonstration of the operation scars. Sloane stated, “she showed it as if she was really proud of it and very, very chuffed with it, that was the spirit it was done in.”[28]
[28] Record Vol 5 p 819.
Lando Sloane’s appraisal was similar – “it came across that she was fairly excited about the operation or the change and she wanted to share it...”[29]
[29] Record Vol 5 p 729.
There is no doubt that these actions caused embarrassment to Ms Sloane. The applicant’s submission is that it does not follow that this was sexual harassment. She submits “it is difficult to see how the conduct might be unwelcomed. They were both asked for permission before I engaged in the conduct.”
This submission overlooks the sensitivities of the situation. There was a provocativeness or invasiveness in her actions calculated to stir or challenge the other persons she involved. The situation was prone to cause embarrassment or offence to either or both of Welita Sloane and Lando Sloane.
It was further submitted that it could not be inferred that there was any element of sexual gratification on the part of any person in relation to the incident, and that it was clearly the sharing of a medical experience. There was no relationship of employer and employee involved, but the applicant was the Branch Manager of the organisation in which Welita Stone worked as an Administration Officer. She had formerly been in the Police Force in a subordinate position to the applicant. It occurred at her place of work during a social function out of office hours. We do not suggest that there was any direct element of gratification but we note the fact that she chose to involve a male in such an exercise was at least confrontational, and possibly mischievous. It was unbecoming conduct that had a sexual element and of a sexual nature and which was likely to cause embarrassment, offence and humiliation to Welita Stone, as it actually did.
In our view the charges made out on the ordinary understanding of the words “sexually harassed”. We are also of the view that, under the relevant words of the Anti Discrimination Act 1991 in section 119, the applicant engaged in unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended or humiliated by the conduct. If we thought it necessary to do so, we would be prepared to make a finding to this effect, but do not consider it necessary.
It is not suggested that the conduct was at the serious end of sexual harassment, but we consider that it was crass and insensitive, and unbecoming for a serving police sergeant. We are therefore satisfied that this charge of misconduct has been made out.
Sanctions
The substantiated charges are matters one, two, three, five, six, eight and nine. They Include misappropriation of property, dishonesty in dealing with money and untruthfulness during interviews with superior officers. There has been a wide range of misconduct over an extended period.
The applicant’s conduct is inconsistent with the continuation in office of a serving police officer. Her untruthfulness and protracted and ongoing efforts to cover up her misconduct suggest a lack of integrity. Untruthfulness is a dangerous quality in a police officer, as Demack J observed in Re Bowen [1996] 2 Qd R 8, 9-11, as it erodes public confidence and destroys the trust of other members of the police force.
She abused her position, acted dishonestly, and lied about it. There has been no genuine admission of fault and there is a complete absence of remorse.
It is noted that the applicant’s service history contains many previous incidents of misconduct, and is overall poor.
The only proper response from the tribunal, having regard to the nature and extent of the charges, is to order dismissal from the force on each of matters number 1, 2, 3, 5, 6, 8 and 9.
Standing alone, charges three and nine would not result in orders of dismissal, but in the context of the other charges the appropriate sanction will be to make concurrent orders of dismissal on all charges.
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